Judgment

CHANDRACHUD, J.:- On July 31, 1965 a Food Inspector of the Municipal Corporation of Delhi took a sample of Haldi from the appellant s shop on More Sarai Road. On the Public Analyst certifying that the Haldi contained foreign starches to the extent of 25 per cent, the appellant was put up for trial before the learned Magistrate, First Class, Delhi, under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. The learned Magistrate acquitted the appellant on the sole ground that the sample of Haldi was not taken by the Food Inspector in the presence of independent witnesses, leading to non-compliance with the "mandatory provisions" of Section 10 (7) of the Act. The order of acquittal was set aside in appeal by the High Court of Delhi which following its own earlier judgment took the view that the provisions of Section 10 (7) of the Act are directory and not mandatory. This appeal by special leave is directed against the judgment of the High Court convicting the appellant of the offence of selling an adulterated article of food and sentencing him to suffer imprisonment for six months and to pay a fine of Rs. 1000.

2. It is urged on behalf of the appellant that report of the Public Analyst does not say that the presence of 25 per cent of starch affects injuriously the nature, substance or quality of Haldi and therefore the sample taken by the Food Inspector cannot be said to be adulterated within the meaning of Section 2 (i) (b) of the Act. The short answer to this contention is that Rule 44 of the Prevention of Food Adulteration Rules, 1955 provides that no person shall sell turmeric "containing any foreign substance". The report of the Public Analyst shows that the sample contained not natural but "foreign starches". Section 7 (v) of the Act provided that no person shall sell any article of food in contravention of any provision of the Act or of any rule made thereunder. The sale of Haldi containing foreign starch is in contravention of Rule 44 (h) and is therefore an offence under Section 7 (v) of the Act.

3. Great reliance was placed by counsel for the appellant on the circumstance that as required by Section 10 (7) of the Act the Food Inspector did not take the sample in the presence of independent persons. It is urged that Section 10 (7) is mandatory and its contravention would vitiate the conviction.

Section 10 (7) provides:

"Where the Food Inspector takes any action under clause (a) of sub-s. (1), sub-s. (2), sub-s. (4) or sub-sec. (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures."

There can be no doubt that "one or more persons" must mean one or more independent persons. The legislative history of sub-section(7) further shows that at the least, the Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the sub-section. Prior to its amendment by Act XLIX of 1964, sub-section (7) ran thus:

"Where the Food Inspector takes any action under clause (a) of sub-section (1)....he shall, as far as possible call not less than two persons to be present at the time when such action is taken and take their signatures." By the amendment of 1964, the words "as far as possible" were deleted. This deletion naturally lends plausibility to the contention that the provisions of Section 10 (7) are mandatory and it has been so held in Food Inspector, Corporation of Calicut v. Vincent, ILR (1966) 2 Ker 551 and Ram Sarup Tara Chand v. The State, AIR 1965 Punj 366

4. We are of the opinion, particularly in view of the legislative history of Section 10 (7), that while taking action under any of the provisions mentioned in the sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more ind